43 F. 425 -

43 F1d 425

class="ad-unit">

Advertisement

Case Text

MITCHELL t7. MURPHY·

425

.ered up as to render hearing or sight impossible would be gross tributary negligence. The error for which they sent the case back waf! the expression by the circuit judge of his opiI\ion on the facts; the rule in this state being that a judge cannot, by word, and perhaps by voice or gesture, by countenance or emphasis, aid the jury in their exclusive province,-the decision on the facts. In Schofield v. RailWllY 00., supra, the supreme court of the United States sustained the trial judge in his instruction to the jury to find for the defendant, under very similar to those of the case at bar. Enter an order for a new trial.

MITeJRELL

et al.

t1. MURPHY.

(Citrcuit Court, W. D. Penns1/lvania. August 5, 1890.)'
1.

TRUSTS-IMPLIED TRUSTS.

A deed frpm Bo'. M., and P. to Joseph Pennock for a tract of land oontaiped the recital: "And wbereas, the said land is intended to be for a residence for Will, iam Murpbyand his family, and the said Joseph Pennock pays towltrdsthe chasemonw 11,200. and Isaac M. Pennock * * * pays 1500, and Arehibald Paull. ·. pays $500." Tbe conveyance was to Josep1;l Pennock, "in trust; ail well for the said Isaac M. Pennock and Archibald Paull as for. himself, in the proportions the amount paid by each bears to the whole purchase money." These persons put· Murphy into possession for no defined period. Held, that there was nb implied trust in favor of William Murphy and bis family, and his poslI6l1Bionwail that of a mere tenant at will. Murphy,with bis family, remained in possession of the land until his death,anp tbereafterhiswidowcontinued in possession for more than 21 years. HeW that,'as bel' hus!:l.and's possession was in subordination to the title of the rightful ownerS, her continued possession was of the same character, and that. in the absence of evidence that she had renounced the privity between her and the rightful owners, or.bysomeunequivocal act had severed it, she could not avail herself of the statute of limitations.
·

B.

ADVERSE J:'OSSESSION.

Ejectment. In pursuance of a written stipulation this case was tried by the court 'without the intervention of a jury. The following facts, therefore, arefound by the court: .
. (1) The title to the piece of land described in the writ in this case being in Isaac Beeson. George Meason, and Charles Peach, these persons, by their deed dated March 27, 1851, for the stated consiQeratioll of $2,200 therein acknowl... edged as haTing been paid by Joseph .Pennock, Isaac M. Pennock, and Archibald Paull, conveyed said pil'ce of land to said Joseph Pennock in trust as follows. namely: .. To have and to hold the same, with the appurtenances thereunto belonging. unto him, the said Joseph Pennock, his heirs and assigns, . in trust, as well for the said Isaac M. Pennock and Archibald Paull as for himself. in the proportions the amount paid by each bears to the whole purehase monl'y." The said deed, after redting the chain of title from the commonwealth of Pennsylvania down to said Peal,h to several tracts of land lif which the piece here in question is a part, contains this recital jnst before th(:l" cOllv.eyingclause, namely: "And whereas, the said Peach has sold fifty of the same to Joseph Pennock, of the city of Pittsburgh, in trust, as herein")fter stated: and whereas, the said land is intended to be for a residence fot

I'EDEaAA. JUCPORTER ,vak 43.
P!lnl)ock pays towards pennock, qf tJIe eity pays fiYe.hubdr.e4 and A,t'chll>a'id Paull, of the city of Va;, pays five hiihiirE!d 'dollars." (2)"fhe,said Joseph Pennock and AlolJibald Paull hM leach Iijlirrieda sIster ()f sltitl:William Murphy. 'fhe .latter, .at,the date ofsaid deed, :was in ill health , and he continued an invalid .(3) In the year Jl:l51,soon after tqll date of said deed, said William Into s:-lldplece()f iland. ,and. he reSide!! .thereon with hiS WIfe, Sabl!l' 'tb El the.lr children:' until his in :1'860\ hOldmg the'land dutlDg his'occupancym subserVltlncy to the title of said Pennocks and Paull. (4) After the death of her husband. the said William Murphy, the defendant remained in the possrssion of said pitJca of land, residinl{ thereon with her children; and" her possession thereof has been continuous from her husband's death down to this time. (5) On July 2, 1866, said Joseph and Isaac M. Pennock executetl a written lease, whereby they let and demised to the defendant'saId.plece bf land for the term of 15 years from April 1, 1866. for the use of herself and the children of William Murphy and herself, at a qominal rent,1'nd Qn JU,ly 6, 1866, she e"acutedand delivered to the agent of said Pennocks an instrument of writing of which the follOWing is a copy: "Ii'Slirnh'1t!Urpb},!;'wfdol;VOf,"WWiam., Murphy, myself and the chihl,j'en qf, said, and d eC,1 are ,that as. to 12-22 and5-22part8 of the tract of:iandon:, the Connellsville road. inN. Union containingaboU:t fifty ,acres, on We no", and April 1st, 1851, we hol4 and have ..,and1l8,!ftm3..,t8 at will of Josephl't'nnock and Isaac M. Pennock,,·jn'>con;nection witbiA.rchibaldPaull, and according to bis last will; we now accepting a lease of said interest from said Joseph and Isaac, fQr the e.,rm of fl, fl:omApril J 1866, dated July 2nd, 1866, upQn the rent ,' and terms thertmi stated. hand and seal this sixth day of July, A. 1866., ,.' SARAH B. MURPHY. [Seal.] ; '''.rest: J ();gN, COLLINS. " ' . , (6) The SElid Archibald in the year 18M,and all the right,tltle, and interest in and to said piece of land which he acqUired under the aforesaid deed of March 27, 1851, by virtue of his last will aud otherwise, became vested in the plaintiffs before the date of this suit, viz., the 6th day of September. 1888.,(7) Wh...n: the writ iJlthjs,case :was served on the defendant she WliS residing on s/lid, piece of.lllnd, with one daughter, a, child of William Murphy and herself, and a granddaughter. the minor child of a deceas!:,d ciaughter, and this child and grandchild stiJIli ve with her on the land. (8) The taxes on aaiqpieceof,.lanll were paid by ,Will lam Murphy, or by the dt'fendant, during bis,life·titll.eand occupancy, and' since his death by the,defendant. The land was assessed hi: the name of 'Joseph Pennoek' from 1851 down to 1867. and since then has' been assessed intlte defendant's nalile. ' bP'i;f3JDilYr and' the

hundroodoll;,l.rs. and ;Isaa(l

t,

J. 'Jf."

S. L. .Mestrezat, for,defendant.

,for plaintiffs.

N.

ACHESON,:.t. appearing, I am quite unable to see how the, defendant can successfully resist areCO\'ery by the plaintiffs. T,vogroundsofdefense'arereIiedon. In the first place, the defendant sets up \1I1de1' the ,,' But' undeniably her husbalm, WiUiitm:Murphy, ofJoseph and Isaao ,auq: Archibald Paull l l¥ld .hJs. Qease4 to

be in subordination to their title. It is settled thatwheldh'e original possession by the holder of land isiD privity with the title of the rightful owner, nothing short of an open and explicit disavowal and claimer of holding under that title and of title in himself brought' home to the other party wiil 'enable such holder to avail himself'qf statute of limitations. Oadwalader v. App,: 81 Pa. St. 194; Zeller's Lessee v. Eckert, 4 How. 289. But William Murphy never disavowed the title of those who put him into possession, nor did he ever indicate in any wanner an intention to hold adversely. And, as his possession was tn subserviency to the title of the rightful owners, the continued possession, upon his death, of his widow, the defendant, was of the same character. Bannon v. BraJndon, 34 Pa; 8t,263. In that case it was held that the widow of a tenant for life, who 'continues in 'possession without any contract between herself and the owner of the land, holds in subordination' to the title of the latter, and not adversely. Having entered by right under her husband, when the right ceased and she held over, she was at least a tenant by sufferance. Id. Now it is not shown that the defendant ever renounced the privity between her and the rightful owners, or by any unequivocal act severed tbat privity. That she paid the taxt's _was nothing more than her plain duty, since she had the full and free use and enjoyment of the premises. Without regard, then, to the transaction between the Pennocks ap,q, the defendant in the year 1866, the by them, and "the declaration of tenure" executed by her, the conclusion cannot be avoided that the defense of the statute of liI1litations set up against the plllilltiffs has no foundation to rest on. The other and totally different of del(-.nse taken by the defendant is that the right of possession to the land is in the surviving family of William Murphy"for a residence."such I'i/Zht being evidenced by the recital in the deed from Beeson aud ot/IE'rs to J oseiJh Pennock, \'iz.: "And whereas, the said land is intended to be for a residence for William Murphy and his family ."etc., and the intention executed, by putting him into possession. But William Murphy WIlS notll patty to that deed. Neitherdid he contribute to the consideratiollpaiil; The purchase was altogether res inter alios acta. The deed contaitls tIn expre8s trust declared in very apt words in lavor of Il'aac M. Penrioekand Archibald Paull,but none declared in favor ofWillin.m 1\hirphy. Evidently the deed was drawn>by one If'arned in the law. and if' it had been intended to create any trust' for the benefit of William Murphyand his family the intention would have bern expressed, arid not leff todoubtlulinference.When read in connection with the whole deed, we find thut the manifest purpose of the particular recital, in whichWilliitm Murphy's name was toex,plain the trnnsaction as between 'J oseph Pennock, Isaac M. Pennock, and Archibald Paull. and define their respecth'e interests ill the land. Their expre8sed benevolent intention to proVi'de a place of residence forAViIliltm Murphy and his family imposed' no legal obligation upon them.:'and clothed himwith no enfon:eaule right. Andwhenthey vol untarily.' hitn possesSion for no definoo period he most"a;mere·tenantat w i l l . " .

the

.

'

_ Thatihe. plaintiffs have the legal title upon which to found an action Q(ejectmeptcannot be doubte'd. The trust in Joseph Pen.nockunder of March 27 j 1851, was a dry trust. The statute, therefore, the use, and the legal. title to the undivided five twenty-second parts of the land passed to Archibald Paull. Moore v. Bhultz,13 Pa. Stewart, 53 Pa.St. 460; Webster .v. Cooper, 14 How. St.: 98; Eckels 488. , An,d now, August 5, 1890, the court finds in favor of the plaintiffs, tllatthey do recover the undivided five twenty-second parts of the piElce, of.land described in the plaintiffs' p1';ecipe and the writ, and six dents damages, and costs.. ' , " Let judgment be entered upon the finding of the couttin favor of the pla.i l1 tifts at ,the end of four (,lays sec. reg., unless, in the mean ,time,a IP,ptioJi for aJ:lew trial should be made·
. !:

.,

"

t

WA.BNOdK .V.MITCHELL·

i:' : ' ,

i: ;

,,(C(rcuft Court.

lV. D.

Augul\t 26, 1800.)

."

Cahmtit LIlUl:L-ACTfON

".: 'Dhe Tennessee Code (Mill & V. § 6552) has not changed the common law that t/)e sending of a sealed letter which is libelous to the plll.illtiff, without allY "other kat on the part of the defendant towards making its contents known to a third _ person; is punishable criminally, it is Dot a publioation liuftloien1O 100 suppor1O a civil ,aqtioll, for d,efamation. . ' ,

DAMAGES-SEKDING LETTER.:.

";At'

; ·Ster;ling

,

'.. Taylor «'Carroll,

' On demurrer, to the

for plaintiff. for defeQdant.

J. The two counts of. thisdeclaratiol1' to which the debelm limited by the submission in argument, aver no other or specially, of the alleged libel, than the r,eceipt by 'theplaintiffQf 'the private letters in which the, cOI).t8;ined. , It is by the plaintiff's counsel, that this is not lJosiifficjeD.t publication, unless the rule of the commoQ law, has been by .the statute. .will. aid us in determining the disputed; scope ,of the' statute to consider somewhat the rule of the common law, 6J:l the, ,irhe counsel for the defendant has statlld correctly, as find, the ,rea.son why mere delivery of a private letter, to the r)lliiutip' is, no.t;in.a civil,lWtion, a publication of the, libel, ,and yet, in a,' <;rimiual iJidictment, to a publication. In the civil action, the iri"thei>ry allows for wounded feelings alone, but oply that injury is with an impairmeQt of one's repothers; as, in other cases,- of tort, where there tnust be some _ <;>r which may be by the. mento. talsuffl!rmg attendmg the lDJury. But when,the pul>li.c
murrer